Cornell International Law Journal Volume 30 Article 8 Issue 2 1997 The omprC omise between Outrage and Compassion: Article 3(a) and In re Requested Extradition of Smyth Daniel T. Kiely Jr. Follow this and additional works at: http://scholarship.law.cornell.edu/cilj Part of the Law Commons Recommended Citation Kiely, Daniel T. Jr. (1997) "The omprC omise between Outrage and Compassion: Article 3(a) and In re Requested Extradition of Smyth," Cornell International Law Journal: Vol. 30: Iss. 2, Article 8. Available at: http://scholarship.law.cornell.edu/cilj/vol30/iss2/8 This Note is brought to you for free and open access by Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell International Law Journal by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. The Compromise Between Outrage and Compassion: Article 3(a) and In re Requested Extradition of Smyth Daniel T. Kiely, Jr.* Introduction The 1986 ratification of a supplementary extradition treaty between the United States and the United Kingdom' marked a significant departure from established extradition law in the United States. The Supplementary Treaty was promulgated in response to four federal court decisions in the early 1980s refusing to extradite members of the Provisional Irish Republi- can Army (P.I.R.A.) to the United Kingdom. 2 In each case, the P.I.R.A. fugi- tives were deemed to be non-extraditable after the court concluded that the "4political offense" exception barred their extradition.3 This exception is codified in all bilateral extradition treaties to which the United States is a party and grants U.S. courts the power to refuse a foreign nation's request for extradition if the court finds that the offense committed by the potential extraditee was political in nature.4 The 1985 Supplementary Treaty between the United States and Great Britain significantly narrowed the political offense exception by explicitly excluding most violent crimes from * J.D., Cornell Law School, 1997; B.A., College of the Holy Cross, 1994. This Note is dedicated to my parents, Daniel and Ellen Kiely, and to the memory of my uncle, Tim Kiely. 1. Supplementary Treaty Concerning the Extradition Treaty Between the Govern- ment of the Unites States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, June 25, 1985 [hereinafter Supplementary Treaty]. The text of this treaty can be found at S. ExEc. REP. No. 17, 99th Cong., 2d Sess. 15-17 (1986). 2. See In re Mackin, 668 F.2d 122, 125 (2d Cir. 1981); In re Doherty, 599 F. Supp. 270, 277 (S.D. N.Y. 1984), affid, 943 F.2d 204 (2d Cir. 1991), rev'd, 502 U.S. 314 (1992); In re McMullen, Mag. No. 3-78-1099 MG, slip op. (N.D. Cal. May 11, 1979); Quinn v. Robinson, No. C-82-6688 RPA, slip op. (N.D. Cal. Oct. 3, 1983), rev'd, 783 F.2d 776, 793 (9th Cir. 1986). 3. Extradition Treaty Between the Government of the United States of America and the Government of Great Britain and Northern Ireland, Oct. 21, 1976, art. V(1)(c)(i), U.S.-U.K, 28 U.S.T. 227 [hereinafter Extradition Treaty]. This provision of the treaty states that extradition "shall not be granted" in cases where the offense "is regarded by the requested party as one of a political character." 4. See John Patrick Groarke, Comment, Revolutionaries Beware: The Erosion of the Political Offense Exception Under the 1986 United States-United Kingdom Supplementary Extradition Treaty, 136 U. PA. L. Rev. 1515, 1519 (1988). 30 Comtnt. Ir't. J. 587 (1997) Cornell International Law Journal Vol. 30 the definition of "political crime. ' 5 Although the Supplementary Treaty effectively denies P.I.R.A. fugitives a defense predicated upon the political offense exception, it does provide for a new, more narrow, defense to extradition. This new defense is codi- fied in article 3(a) of the Supplementary Treaty.6 Article 3(a) provides potential extraditees with a defense to extradition based upon racial, reli- gious, political, or ethnic discrimination. Under article 3(a), a U.S. court may deny extradition in two situations: (1) if the request for extradition is motivated by a subjective desire to punish the person sought on account of his or her race, religion, nationality, or political opinions; or (2) in situa- tions where the person sought would in fact be prejudiced at his or her trial, or prejudiced after his or her trial on account of the forbidden 7 factors. Until 1994, no P.I.R.A. fugitive had asserted an article 3(a) defense to extradition. In In re Requested Extradition of Smyth, the U.S. District Court for the Northern District of California held that James Smyth, a suspected P.I.R.A. fugitive who had escaped from prison in Northern Ireland after serving five years of a twenty-year sentence for attempted murder, asserted a meritorious article 3(a) defense to extradition. 8 The court held that Smyth had established this claim by showing that he would be punished both because of his religion and because of his political opinions upon his 5. Article 1 of the Treaty states: For the purposes of the Extradition Treaty, none of the following shall be regarded as an offense of a political character: (a) an offense for which both Contracting Parties have the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit his case to their competent authorities for decision as to prosecution; (b) murder, voluntary manslaughter, and assault causing grievous bodily harm; (c) kidnapping, abduction, or serious unlawful detention, including taking a hostage; (d) an offense involving the use of a bomb, grenade, rocket, firearm, letter or parcel bomb, or any incendiary device if this use endangers any person; (e)an attempt to commit any of the foregoing offenses or participation as an accomplice of a person who commits or attempts to commit such an offense. Supplementary Treaty, supra note 1, at 15. 6. Article 3(a) provides: Notwithstanding any other provision of this Supplementary Treaty, extradition shall not occur if the person sought establishes to the satisfaction of the compe- tent judicial authority by a preponderance of the evidence that the request for extradition has in fact been made with a view to try or punish him on account of his race, religion, nationality, or political opinions, or that he would, if surren- dered, be prejudiced at his trial or punished, detained or restricted in his liberty by reason of his race, religion, nationality or political opinions. Supplementary Treaty, supra note 1, at 16. 7. See In re Requested Extradition of Smyth, 863 F. Supp. 1137, 1150 (N.D. Cal. 1994), rev'd 61 F.3d 711 (9th Cir. 1995), reh'g denied, 72 F.3d 1433 (9th Cir. 1996), cert. denied, 116 S. Ct. 2258 (1996). The Smyth court noted that Article 3(a) granted two distinct powers: (1) the court may inquire into whether the requesting nation has "trumped up" charges against the fugitive; and (2) the court may inquire into whether the fugitive would be unfairly treated at his trial or punished, detained, or restricted in his liberty because of his race, religion, nationality, or political opinion. Id. 8. Id. at 1151. 1997 Compromise Between Outrage and Compassion return to prison in Northern Ireland and upon his subsequent release into the general populationY Judge Barbara Caulfield arrived at this conclusion by relying upon presumptions awarded to James Smyth that were not rebutted by Great Britain and by using an analogous immigration provi- sion called "withholding of deportation" to interpret article 3(a). 10 The U.S. Court of Appeals for the Ninth Circuit reversed the Northern District's findings and ordered the Northern District to certify the extradi- tion request.11 In addition to holding that the presumptions awarded to also rejected Judge James Smyth were inappropriate, the Ninth Circuit 2 Caulfield's use of the withholding of deportation statute and regulations.' The Supreme Court implicitly upheld the decision of the Ninth Circuit by 13 refusing to hear Smyth's appeal. This Note explores the Smyth case in an effort to determine the proper scope of article 3(a) of the Supplementary Treaty. This Note does not seek to determine the relative merits of Mr. Smyth's article 3(a) claim. Rather, it critiques the Ninth Circuit's interpretation of that provision. Part I discusses the historical roots of the Anglo-Irish relationship and the causes of the current conflict. Part I also discusses the judicial system that has been established in Northern Ireland in response to the political unrest there. Part II examines the 1986 Supplementary Treaty and its pred- ecessor, the 1977 Treaty. Part III looks at the background of James Smyth and the circumstances surrounding his trial and appeals in U.S. federal courts. Finally, part IV analyzes the holdings of the federal courts that heard Smyth and offers suggestions regarding the future interpretation and application of article 3(a). I. Background A. History of the Conflict and the Beginning of British Rule Irish historian Robert Kee once noted that when trouble began to escalate in Northern Ireland in the 1960s it took many people by surprise. Many people throughout the world thought that these problems signalled the beginning of unrest. However, these problems were not a beginning, but 4 rather were "the latest events in an age old story which began long ago."' To understand the violence that permeates Northern Ireland today it is necessary to understand the roots of the Anglo-Irish conflict.